Habeas; Death Penalty; Whether Appellate Counsel was Ineffective in Failing to
Raise Claims Challenging Legality of Petitioner’s Death Sentence; Whether
Public Act Prospectively Repealing Death Penalty Bars Execution of Defendants
Sentenced to Death for Crimes Committed Prior to Act’s Effective Date. In 1991, the petitioner was
convicted of capital felony and sentenced to death for the kidnapping and murder
of Diane Gellenbeck. After his death sentence was upheld on appeal, the
petitioner brought this habeas action, claiming that his appellate counsel was
ineffective in failing to raise the following claims on appeal: (1) that the trial
court’s instructions and the special verdict form allowed the jury to report
that it had not found any mitigating factors even if its votes on the factors
were not unanimous in contravention of Mills v. Maryland, 486
U.S. 376 (1988), (2) that the trial court’s instructions, in contravention of Caldwell
v. Mississippi, 472 U.S. 320 (1985), failed to convey to the jury that if
it found an aggravating factor and no mitigating factor the court would be
compelled to impose a death sentence; and (3) that the trial court, in
contravention of Simmons v. South Carolina, 512 U.S. 154 (1994),
improperly refused to instruct the jury that the only alternative to a death
sentence was life imprisonment without the possibility of release. The habeas court
determined that the petitioner would not have prevailed on the Mills claim
had it been raised on appeal and therefore that he was not prejudiced by
counsel’s failure to raise it. It explained that, based on the trial court’s instructions
on aggravating and mitigating factors, as well as the manner in which the jury
completed the special verdict forms, it was reasonable to conclude that the
jury understood that marking “No” on the special verdict form for mitigating
factors meant no mitigant had been proven. The court also rejected the Caldwell
claim for failure to establish prejudice. It found that the trial judge did
nothing to lead the jury to believe that the court, in imposing sentence, would
not merely be implementing the jury’s findings or that the jury was not the ultimate
determiner of whether the petitioner would be executed or serve a life sentence.
Finally, the habeas court ruled that, because there was no factual basis for
asserting a Simmons claim, counsel was not deficient in failing to raise
such a claim on appeal and that, alternatively, even if there was deficient
performance, the petitioner was not prejudiced as a result. The court explained
that the factual predicate triggering a trial court’s obligation to give a Simmons
instruction—some occurrence that might mislead the jury to believe that, if a
life sentence was imposed, the petitioner might be released from prison at some
point in the future—was missing here. Accordingly, the court denied the habeas
petition. The petitioner appeals and challenges the denial of his ineffective
assistance of counsel claims. Additionally, the petitioner challenges his
death sentence based on the passage of Public Act 2012, No. 12-5, which repealed
the death penalty only for crimes committed on or after its effective date. He
claims that, because the passage of the act establishes that the death penalty
is inconsistent with present-day standards of decency in Connecticut and no
longer serves any valid penological objective, his execution would constitute
cruel and unusual punishment and violate his constitutional rights to due
process and equal protection.